“But don’t they have to have probable cause to search my email or get my Facebook records?” I can’t tell you how many phone calls we’ve received with that question – and as we tell each caller, “We are not attorneys, judges or the court or the police department. But, uh, what happened?” (Who doesn’t want to hear a good story??)

(Anyhow, for the purpose of this article, “they” means law enforcement.)

Here are the situations and the applicable laws:

1. Phone Records: Calls you have made and received

How they get it

Wiretapping is illegal without a judge’s warrant, however, police only require a subpoena from a court to obtain your phone scrolls (outgoing and incoming calls).

A warrant requires showing probable cause, a subpoena needs only to be relevant to an investigation, a much lesser standard of evidence.

Applicable law:

Smith v. Maryland, a Supreme Court ruling in 1979, which found that the Constitution’s Fourth Amendment protection against unreasonable search and seizure doesn’t apply to a list of phone numbers.

2. Location: Your phone is a tracking device

How they get it

Cell towers.

Applicable Law:

The federal Electronic Communications Privacy Act (EPCA) cited by the police for these records dictates that the data must contain “specific and articulable facts” related to an investigation – again, that lesser standard of evidence.

3. IP Addresses: Which computers you use

How they get it

Email providers such as Google, Yahoo, MS, etc. amass tremendous amounts of data about our digital journeys. A warrant is needed to access some emails (see below), but not for the IP addresses of the computers used to log into your mail account or surf the Web. According to the ACLU, those records are kept for at least a year.

Applicable law:

U.S. v. Forrester, is a case involving two men trying to set up a drug lab in California. Prosecutors successfully argued that tracking IP addresses was no different than installing a tracking device to a phone to track each number dialed by a given phone (which is legal). Police only need a court to sign off on a subpoena certifying that the data they’re after is relevant to an investigation — the same standard as required for cell phone records.

4. Emails

How they get it

Prior to Sen, Leahy’s bill introduced earlier this year, only recent email required a warrant; email aged over 180 days required only a court subpoena related to an investigation.

Applicable Law

Once again, the ECPA comes into play. The Leahy bill would require a warrant to get all emails regardless of age.

5. Email drafts: drafts are different

How they get it

Communicating through draft emails, à la David Petreaus and Paula Broadwell, seems sneaky. But drafts are actually easier for investigators to get than recently sent emails because the law treats them differently.

Applicable Law:

The ECPA distinguishes between communications — emails, texts, etc. — and stored electronic data. Draft emails fall into the latter, which get less protection under the law. Authorities needs only a subpoena for them. The Leahy bill would change that by requiring a warrant to obtain them.

6. Text messages: As with emails, so with texts

How they get it

Investigators need only a subpoena, not a warrant, to get text messages more than 180 days old from a cell provider — the same standard as emails.

Applicable Law:

Currently being challenged in several states otherwise, the ECPA applies.

7. Cloud data: documents, photos, and other stuff stored online

How they get it

Authorities typically need only a subpoena to get data from Google Drive, Dropbox, SkyDrive, and other services that allow users to store data on their servers (aka, cloud storage). EXCEPT: If that data is shared. (see below).

Applicable Law:

The ECPA defines cloud data the same way it does draft emails – as storage – making a warrant unnecessary. However, shared files, such as a collaboration through Google Docs is considered “communication” so a warrant is required.

8. Social media: Too new to tell

How they get it

Read your social network’s Terms of Service and Privacy Policy. (Stop laughing.) When it comes to sites like Facebook, Twitter and LinkedIn, the social networks’ privacy policies outline how cooperative they are in handing over users’ data to law enforcement. Facebook states it requires a judge’s warrant to disclose a user’s “messages, photos, videos, wall posts, and location information.” But it will supply basic information, such as a user’s email address or the user’s IP addresses under a subpoena.

Applicable Law:

Too soon to tell but we’re know that a Manhattan Criminal Court judge upheld a prosecutor’s subpoena for information from Twitter regarding an Occupy Wall Street arrest on the Brooklyn Bridge in 2011, marking the first time a judge allowed prosecutors to use a subpoena rather than a warrant to get the information.

Bottom Line: Assume that everything you write can and will, if necessary, be read by law enforcement so don’t do whatever it is that you haven’t done.

Who. What.

For the trial law and legal community from a private investigator's perspective.
The Beacon Bulletin is the weekly newsletter authored and published by our parent company, Beacon Network Investigations, LLC (BNI).
We're a private investigation company. We DON'T dispense legal advice, respond to anonymous queries or black hat your enemies for you. (Internally, however, points are alloted to our favorite subtly phrased compliments.)
We DO hope to inform. That's our business.